High Court Kerala High Court

Noufal K.S. vs George Mathew on 26 September, 2008

Kerala High Court
Noufal K.S. vs George Mathew on 26 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 911 of 2006()


1. NOUFAL K.S., S/O. SIDDIQUE LABBA,
                      ...  Petitioner

                        Vs



1. GEORGE MATHEW, S/O. GEORGE,
                       ...       Respondent

2. JOJEN JOHN, S/O. JOHN,

3. THE NATIONAL INSURANCE CO. LTD.,

4. S. GOPAKUMAR,

                For Petitioner  :SRI.MATHEW JOHN (K)

                For Respondent  :SRI.S.D.ASOKAN

The Hon'ble MR. Justice T.K.CHANDRASEKHARADAS(RETD. JUDGE)

 Dated :26/09/2008

 O R D E R
             JUSTICE T.K.CHANDRASEKHARA DAS
          (RETD. JUDGE, HIGH COURT OF KERALA)
                               AND
               SRI.M.P.RAMACHANDRAN NAIR
       (SENIOR ADVOCATE, HIGH COURT OF KERALA)
     =================================
                    M.A.C.A.No.911 of 2006
     =================================
           Dated this the 26th day of September, 2008


                             AWARD


     Counsel for the appellant submits that it is on account of

duplication, the appeal happened to be filed and is willing to

withdraw the appeal. Insurance Company has no objection to do

so. Therefore, the appeal is closed.



                               T.K.CHANDRASEKHARA DAS
                        (RETD. JUDGE, HIGH COURT OF KERALA)




                             M.P.RAMACHANDRAN NAIR
                  (SENIOR ADVOCATE, HIGH COURT OF KERALA)

dvs


? IN THE HIGH COURT OF KERALA AT ERNAKULAM

+OP.No. 2310 of 2002(Y)


#1. R.THANKAPPAN NAIR,
                      ...  Petitioner

                        Vs



$1. DIVISIONAL FOREST OFFICER,
                       ...       Respondent

2. FOREST RANGE OFFICER,

3. DY. TAHSILDAR (RR), TALUK OFFICE,

!                For Petitioner  :SRI.M.A.MANHU

^                For Respondent  :GOVERNMENT PLEADER

*Coram
 The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR

% Dated :26/09/2008

: O R D E R

C.N.RAMACHANDRAN NAIR, J.

…………………………………………………………..

O.P. No.2310 of 2002
…………………………………………………………..
Dated this the 26th day of September, 2008.

JUDGMENT

The petitioner is challenging recovery proceedings for recovery of an

amount of Rs.29,562/- being loss caused to the Forest Department on

account of breach of contract committed by petitioner. I heard counsel for

the petitioner and Government Pleader appearing for respondents. The

petitioner admittedly participated in auction sale of timber by the Forest

Department and in the auction held on 27.9.1983, petitioner being the

highest bidder purchased the goods. However, after participating in the

auction and after deposit of security deposit, petitioner failed to remit

balance consideration. Based on tender conditions, goods were resold and

in the second sale, price obtained was less than the price at which goods

were sold to the petitioner. Consequently in terms of tender conditions,

differential price was sought to be recovered towards loss caused to the

department. Even though in the first round this court directed a hearing to

be given to the petitioner, repeated demand is raised against which this O.P.

is filed.

2. The first contention raised by the petitioner i.e. limitation, is not

2

sustainable because Government has 30 years’ time to recover the arrears

due to it. So far as quantification is concerned, provision for computation

of liquidated damages is contained in the tender conditions accepted by the

petitioner which provides for recovering differential cost on resale towards

loss caused to the Government. The petitioner after accepting the provision

contained in the tender condition for liquidated damages, has no right to

question it. Since the loss computed is based on tender conditions accepted

by the petitioner, there is no scope for interference with the amount

demanded in terms of the contract accepted by the petitioner. Even though

counsel relied on Division Bench decision of this court in BUILD TECH.

INDIA V. STATE OF KERALA (2000(2) KLJ 142) and contended that

officer of the Government cannot determine damages for breach of contract,

the said decision has no application because tender condition in the

purchase order accepted by the petitioner provides for fixation of liquidated

damages which does not require any adjudication at all. Accordingly this

contention also is rejected. However, since the matter is delayed for long, I

waive interest on the amount payable by the petitioner provided petitioner

remits the balance amount after adjusting payments already made before

3

30.11.2008. However, if payment is not made by then, recovery will be

made with interest.

The O.P. is disposed of as above.

C.N.RAMACHANDRAN NAIR
Judge
pms